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On the Challenges of the Alford Plea by Lloyd Liu

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ON FURTHER REVIEW On the Challenges of the Alford Plea By Lloyd Liu his column has mentioned declining to bring ill-founded charges with the In November 2010, the Arkansas Supreme stroke of his pen. The best a criminal defense Court granted the defendants’ request for an the vanishing trial and its impli- lawyer can do is try to talk people out of evidentiary hearing to determine whether to cations. There are fewer trials potential guilt one charge at a time. And that’s have a new trial.7 Braga took that development T a much slower process than the prosecutor’s as an opportunity to talk the prosecutor out for a multitude of reasons, some ability to not bring charges in the first place.” of pursuing the charges any further. Despite the significant new evidence, the state more troubling than others. In 2009, while at Ropes & Gray LLP, Braga began remained steadfast in its desire to retry the pro bono representation of Damien Echols of West Memphis Three. Braga persisted, however, Defense attorney Stephen Braga the West Memphis Three. Echols, Jessie and negotiated an agreement for Echols to Misskelley Jr., and Jason Baldwin were charged recently discussed with me maintain his innocence but also plead guilty with the brutal murder of three eight-year-old via the compromise device of an Alford plea. his experience with the West boys in the early 1990s in West Memphis, Memphis Three in which the Arkansas.1 The investigation and trial were The situation reminded Braga of Judge plagued with a litany of issues: a suspicious Flannery’s advice about prosecutorial circumstances made getting confession, speculation over a satanic cult, discretion: and questionable forensics work, among a new trial essentially impossible. I’ve gone back and thought about this others.2 Nevertheless, the three teenagers were in terms of Judge Flannery’s statement A partner with Bracewell LLP, Braga chairs convicted. Echols received the death sentence.3 the firm’s government enforcement and inves- about the impact of a responsible pros- tigations practice. He began his career clerking ecutor. There is one additional point for Judge Thomas Flannery, whom Braga which complicates my feelings about describes as “a very humble man, very quiet. He The prosecutor expressly this further. I think a responsible pros- was the perfect candidate to be a district court ecutor in this case would have had no judge. He had great trial skills. He would call it defended the Alford plea by problem walking away from the guilt or as he saw it.” citing the amount of money innocence aspect of the case if there was never a civil liability question. In Braga says that Flannery made his decisions he saved his constituents such a circumstance, I think the pros- “based on the evidence put before him, ecutor would have dropped the case not any broad policy arguments, not any reflec- by exercising his discretion completely. He wouldn’t have had a tions of contemporary society. What does the the way he had. dog in the fight. evidence show? And how did that evidence implicate the application of the law to the But there was a liability question, problem before him?” potentially tens of millions of dollars, The case drew national attention, garnering the and the prosecutor was an elected When Braga completed his clerkship, he support of celebrities such as Peter Jackson, official, too. He had to show he got informed Judge Flannery of his interest in Eddie Vedder, Natalie Maines, Johnny Depp, something out of the resolution of the becoming a criminal defense lawyer and asked and Henry Rollins. As the case gained notoriety, case, and that something became the judge for advice on where to go. Judge new evidence and defense avenues emerged, saving the state a pile of money. In that Flannery, who had been the former U.S. particularly a new DNA-testing statute.4 DNA way, it’s even a little more unseemly, attorney for the District of Columbia, tried to test results failed to link the defendants to the right? You have the decision of the direct Braga to that prosecutor’s office, telling scene, and instead pointed to other individuals freedom of these three men not him: “Even as good as you might be as a as the potential perpetrators.5 The defense turning entirely on questions of guilt or defense lawyer, a responsible prosecutor can team offered additional evidence that innocence but also on the collateral do much more good for the cause of justice. questioned the reliability of the state’s case liability of the state and the electability A responsible prosecutor can serve justice by as well.6 of the prosecutor. 40 WASHINGTON LAWYER • SEPTEMBER/OCTOBER 2020 ON FURTHER REVIEW OSI SERVING LAWYERS Indeed, the West Memphis Three prosecutor NOTES SINCE 1981 expressly defended the Alford plea by citing the amount of money he saved his 1 See Misskelley v. State, 915 S.W.2d 702, 706 D.C.’s Most Complete Attorney constituents by exercising his discretion the (Ark. 1996). Service Support System 8 way he had. 2 Echols v. State (Echols II), 2010 Ark. 417, at 3, 2010 One of the challenges with the Alford plea was Ark. LEXIS 511, at *16 n.3. Incredible flexibility -- plans its potential broader consequences. “I suspect 3 Misskelley, 915 S.W.2d at 707. from $35/mo through full time after the West Memphis Three deal was officing, with mail, phone, office, 4 Echols v. State (Echols II), 2010 Ark. 417, at 3, 2010 entered that there have been prosecutors in Ark. LEXIS 511, at *3; see Ark. Code Ann. § 16- email, other options. other places that have said, ‘We’ll let you go 112–202 (2001) (amended 2005). when the evidence looks shaky if you’ll agree ‘Digital mail’ -- same day no- 5 Echols II, 2010 Ark. LEXIS 511, at *4. to waive civil liability.’ They won’t agree to a tification of items received, and walk-away,” Braga says. 6 David S. Mitchell Jr., “Lock ‘Em Up and Throw scanned copies if desired Away the Key: ‘The West Memphis Three’ and About those broader implications, Braga has Arkansas’s Statute for Post-Conviction Relief The most developed customer this to say: “I understand the issues that some Based on New Scientific Evidence,” 62 Ark. L. portal around -- reserve offices, in the wrongful conviction community might Rev. 501, 506–07 (2009). make payments, review call re- have with the resolution. But I’m the lawyer for 7 See “Timeline of Events in the West Memphis cords, list qualifications, online Damien. I’m not the lawyer for the cause. My Three Case,” Arkansas Times (Aug. 24, 2011), Over 400 potential attorney client has told me his goal is to get off death arktimes.com/news/cover-stories/2011/08/24/ row, to get out of prison, and to lead the best timeline-of-events-in-the-west-memphis-three- collaborators life he can from this point forward. There’s case. Highly presentable facilities nothing more to talk about.” 8 Andrew DeMillo, “Ellington: Money a Factor in West Memphis Deal,” The Associated Press Evening and weekend use Lloyd Liu is a partner at Bennett Doyle LLP where (Apr. 18, 2012), arkansasonline.com/news/2012/ The orginalattorney officing he focuses on white-collar defense, government apr/18/ellington-money-factor-west-memphis- investigations, and complex civil litigation. 3-deal/?news-arkansas-specials. system. Constant contact system; incl notice of any client appearance Plus three full time office suites Statement of Ownership, Management, and Circulation at Farragut Square. (As Required by 39 U.S.C. § 3685) Ask about our Attorney Starting 1. Publication Title: Washington Lawyer. 2. Publication Number: 0890-8761. 3. Filing Date: August 3, 2020. 4. Issue Frequency: Bi-Monthly. 5. Number of Package, starting at $49.50/mo. Issues Published Annually: 6. 6. Annual Subscription Price: $0. 7. Complete Mailing Address of Known Office of Publication: District of Columbia Bar, COVID-19 protocols followed. 901 4th Street NW, Washington, DC 20001. 8. Complete Mailing Address of Headquarters or General Business Office of Publisher: Same. 9. Full Names 1629 K St. Suite 300 and Complete Addresses of Publisher, Editor, and Managing Editor: Publisher, N.W. Washington D.C. 20006 District of Columbia Bar; Editor in Chief, Andrea Williams; Managing Editor, Andrea Williams. 10. Owner: District of Columbia Bar, 901 4th Street NW, Washington, DC 20001. 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None. 12. Tax Status: Has Not Changed During Preceding 12 Months. 13. Publication Title: Washington Lawyer. 14. Issue Date for Circulation Data: July/August 2020. 15. Nature and Extent of Circulation: Average No. Copies Each Issue During Preceding 12 Months/ No. Copies of Single Issue Published Nearest to Filing Date: a. Total Number of Copies: 96,414/81,801; b. Paid Circulation: (1) 98,690/83,112; c. Total Paid Distribution: 98,690/83,112; d. Free or Nominal Rate Distribution: (1) 45/47, (4) 76/80; e. Total Free or Nominal Rate Distribution: 117/121; f. Total Distribution: 96,211/82,121; g. Copies Not Distributed: 183/172; h. Total: 97,617/82,454; i. Percent Paid: 99.9/99.7. 16. Publication of Statement of Ownership: Publication required. Will be printed in the September/October 2020 issue of this publication. 17. Signature and Title of Editor, Publisher, Business Manager, or Owner: Andrea Williams, Managing Editor. Date: August 3, 2020. https://osioffices.com (202) 600-7777 [email protected] SEPTEMBER/OCTOBER 2020 • WASHINGTON LAWYER 41.
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